[2023] UKUT 208 (LC)

Mr Saunders was given permission to appeal in relation to the cleaning charge of £11,728.43, the common parts security equipment charge of £4,753.30, and the charges for the common parts refurbishment which, in aggregate, total just under £325,000.

His fundamental complaint, common to all three issues, is that the FTT deprived him of the opportunity of a fair hearing by refusing to direct disclosure of the documents requested on 10 November and by preventing him from raising issues highlighted by those documents because they had not been identified in the schedule.

In his submissions in support of the appeal, Mr Morris recognised that the appeal was, in effect, a challenge to the case management decision made by the FTT at the start of the hearing not to disturb the procedural judge’s original refusal to order additional disclosure. Such a challenge can be difficult, and Mr Morris referred to the explanation of those difficulties I gave in English Rose Estates Ltd v Menon [2022] UKUT 347 (LC):

“17.

The FTT’s decision to allow the new point to be taken and its refusal to adjourn were both case management decisions made after receiving oral argument. An appellant who challenges such a decision faces a high hurdle. In Mannion v Grey [2012] EWCA Civ 1667 at [18], Lewison LJ said that “it is vital for the Court of Appeal to uphold robust, fair case management decisions made by first instance judges.”

18.

Appeals from case management decisions will only be allowed where the tribunal has failed to take into account a relevant factor or has regard to an irrelevant factor or has reached a decision that was plainly wrong. There are many authoritative statements to that effect including [citations]. The importance of the decision to the outcome of the proceedings is a relevant factor for the court or tribunal making the original decision, but in Abdulle v Commissioner of Police of the Metropolis [2016] 1 WLR 898, the Court of Appeal emphasised that the same approach applied to appeals even where the case management decision in question had had a very significant impact on the proceedings.”

The main issue in the appeal is, therefore, whether the FTT’s refusal to order disclosure and its refusal to entertain arguments which had not been formulated before the landlord had provided such limited disclosure as it did, were, robust, fair case management decisions or were unfair decisions leading to an unfair result.